All posts by @SomasekharS

It is an extraordinary and unprecedented measure. All the players in a market got together to execute an agreement. They issued a joint press release. A press release that read more like legislation than like a piece of commercial communication being sent to the market. The only three relevant Indian stock exchanges came together to announce that they would stop feeding price data to foreign stock exchanges.

“It is observed that for various reasons the volumes in derivative trading based on Indian securities including indices have reached large proportions in some of the foreign jurisdictions, resulting in migration of liquidity from India,” the release said, adding for good measure, “which is not in the best interest of Indian markets.” With words straight out of the SEBI Act, this was an unprecedented press release that sounded like an order usually passed by SEBI citing Sections 11 and 11B of the SEBI Act, which empowers the market regulator to issue directions “in the best interests of the securities market”.

The content of the press release has to be read to know the unprecedented nature of what is being done. In a nutshell, the self-styled “Indian exchanges” announced the following:

Indian exchanges and their affiliates will not directly or indirectly provide data on data discovered on their platforms to any foreign stock exchange or platform that trades or settles derivatives in any form outside India;

Indian exchanges, their affiliates and also their third-party vendors will blank out any price data to index providers who construct or compute indices outside India;

Global securities indices that have an element of Indian securities too would be starved of price data if 25 per cent or more of the weightage involves Indian securities, and derivatives are written on the back of such indices;

Those who get price data from Indian exchanges would “not be permitted to use” it for any structured product or participatory notes traded abroad;

All existing agreements to provide such data will be terminated immediately with notice period commencing forthwith, and within a month, all arrangements would be terminated or modified to “comply with the contents of” the press release; and

The final closing prices of securities would be displayed on the stock exchange website and forwarded to media organisations, two hours after the close of the market.

Essentially, a gag order on price discovery. An agreement of this sort is what is typically called a “horizontal agreement” under competition law — one in which competitors enter into an agreement. The effects of this agreement can impair competition in the global market for price discovery. The phone lines between the Competition Commission of India and the Securities and Exchange Board of India could be burning with activity (they are statutorily obliged to talk to each other). Overseas competition regulators and overseas securities regulators could demand explanations from their Indian counterparts. The seeds of a cross-border trade diplomacy spat seem to have been sown.

Soon, state agencies may need to take a call on whether to wash their hands off, terming this a private agreement from private market players to combat overseas competition, or whether to take ownership of the measure, or, at the least acknowledge having blessed it if not having authored it. If this measure had the blessings of the regulators, it would have had the blessings of the government.

Both competition law and securities law have provisions enabling the government to issue directions on matters of policy. There could emerge international pressure for government to use this power and direct the regulators to get involved — similar to the pressure to intervene in the spat that occurred years ago between the securities market regulator and the insurance market regulator over unit-linked insurance plans.Putting aside the tone and tenor of the press release, the content does read like the proclamation of an emergency measure.

The philosophy of such policy measures is precisely the philosophy underlying prohibitions, censorship and bans — cases in example are moratoriums on remittances abroad, prohibition on import of gold, and at an extreme, overnight prohibition on usage of certain denominations of currency. Such measures typically push economic activity underground — the expansive and unofficial flow of alcohol in states that have imposed prohibition are a great example.

As Indian companies go global, interest in how their securities are priced in India can only grow across the globe. The demand for live price data of Indian securities would necessarily expand. A great policy response to overseas competition could be to permit Indian platforms to enable trading derivatives on foreign securities within India. These could be denominated in Indian rupee and have foreign securities and foreign indices as their underlying. The Sahoo Committee recommendation to allow such activity through a concept called “Bharat Depository Receipts” has met with stiff resistance from the regulators and is gathering dust. (Disclosure: the author was part of the committee that has made this rejected recommendation.)

Instead, the argument that “we should prevent export of the Indian market” seems to have taken firmer root. This philosophy was used to effectively stop overseas listing by Indian companies. However, a well-known but little-acknowledged fact is that any initial public offering of securities in India is as much a securities offering made outside India as it is a domestic fund-raising exercise.The approach of starving global markets of Indian price data, risks the Indian market itself. It is like a throwback to the pre-1990s era, where imports and exports needed licensing with a view to protect the interests of the Indian market and instead distorted the domestic market.

This Without Contempt column was published in Business Standard edition dated February 15, 2018

After a concerted effort by political parties to circumvent disclosures under the RTI Act come the electoral bonds that will confer on them the benefit of pretending to not know who has donated

By Somasekhar Sundaresan

While the nation’s attention stands rivetted to divisions in the Supreme Court with political parties jumping in to seek mileage over recent events, the noise has succeeded in deflecting public attention from a massive retrograde step. A new year gift to all political parties is the Central government delivering on its threatened promise of enabling a white-wash of anonymous political funding through “electoral bonds”.

Electoral bonds were conceptually discussed briefly last year after the Union Budget was presented. While political parties are merrily commenting on the need for transparency in all institutions, they are happily engaged in a conspiracy of silence over how electoral bonds have cemented their ability to raise money without accountability and propriety being addressed.

Here’s how the bonds would work. The State Bank of India (SBI) would issue these bonds with a validity of just 15 days. You buy a bond from SBI. Within 15 days you donate the bond to a political party with full secrecy guaranteed by depositing the bond in designated accounts of political parties — no trail required. Neither do you need to disclose that you acquired the bonds nor do you need to disclose to whom you made the donation. The political parties can purport not to know who the donors are. This is facetious only because they would clearly know who donated to them through electoral bonds just the way they know today who donates them cash. However, through the figment of anonymity, they stand relieved of the obligation to disclose the colour of money received.

This is a fantastic concept for full exemption for political parties to follow any know-your-client norms. After the concerted conspiracy across party lines to circumvent disclosures under the Right to Information Act, electoral bonds will confer on them the benefit of pretending not to even know who has donated to them.The root cause of corruption in India is the hoarding of monies by political parties to fund elections. Parties that have lost their key treasurers in unforeseen circumstances have had adverse electoral impact. Every party would like to believe that that party alone is good for the nation. Each party would claim in its head that its winning is important to save the nation. Party leaders offer the delusion that they are not really corrupt because they only take monies for party funding, which is driven by notions of nation-building. Corporates generate cash through their operations and that finds its way to political parties. Many an immoral action has for long been masked by such specious and self-serving notions of national interest.Money changers and launderers thrive in the business of converting cash into bank balances. Now electoral bonds will trigger some disintermediation – political parties can now cut out the shroffs and hawala agents through whom they convert cash into bank balances, but the work would shift to those who fund them, who would buy electoral bonds with the cash they launder.The political parties that are entitled to make use of electoral bonds have brazenly flouted the Chief Information Commission’s direction to disclose their sources of funding. Electoral bonds will now give them the cloak beneath which they would wield their daggers.

Last year, one of the many substantive amendments smuggled into the “money bill” that was passed as the Finance Act, 2017, removed the cap on corporate funding of elections.Now that electoral bonds are actually in, none other than the SBI would know who has acquired electoral bonds of what size, and in whose account these bonds have been deposited. The SBI should be able to co-relate the purchase of the bonds and the receipt of bonds. The bank is state-owned and whichever government is in power would get an edge over this confidential information.

The possession and safeguarding of confidential information in a state agency is always suspect — the Competition Commission of India is the only state agency that has so far lived up to its statutory assurance of confidentiality.What is known to the SBI would be amenable to intelligence gathering by the government. For the common man to know which corporate has funded which political party would be impossible. This is where the concerted conspiracy of silence across political parties matters. Corrupt political funding has now received a veneer of respectability by pinning one point of the chain to banking channels.

Funding of political parties is not an area where political parties would blow the whistle on competitors. On the matter of sources of funds, they all have a proven track record watching out for one another and ensuring that no real transparency and reform of political funding ever takes place.Every party would disclose aggregate amount of funding received through electoral bonds, but not the identity. Neither the donor nor the donee would then have to make data public. By bringing in the bonds and given the role of SBI, the bonds are being touted as replacement of cash. All this means the burden of laundering cash will shift to the donors from the political parties, allowing the latter to claim clean funding through electoral bonds.

There are two seemingly benign pointers to all I have said here, in the government’s official defence of electoral bonds. A press statement issued by the Press Information Bureau states that the bonds will bring in “some element of transparency” and suggests that criticism of the bonds fall in the domain of “impractical suggestions” that would consolidate preference for cash donations. In short, the political parties that are in glee over judges who were briefly in public conflict over institutional systems, have privately firmed up institutionalising anonymous corporate funding without having to account for propriety in doing so.

This post was substantially published as my column titled Without Contempt in the Business Standard editions dated January 18, 2018

2017 was marked by 3 extreme developments in law – surprising result in the 2G telecom case, changes in Insolvency and Bankruptcy Code and the push given to ‘Money Bill’ provisions of the Constitution

By Somasekhar Sundaresan

It is that time of the year — as 2017 draws to a close, it is tempting to look at developments in the area of law that impacted business enterprises during the year. It was a year marked by three extreme developments.

First, the biggest development that came at the fag end of the year – the all-surprising outcome in the 2G Telecom Scam (or should we now go back to saying “alleged scam case”). A classic example of a judicial overreach in cancellation of 2G spectrum licenses by a two-member bench of the Supreme Court, had led to the apex court correcting the law on allocation of natural resources when ruling upon a Presidential Reference. The Supreme Court had then taken great care not to disrupt the final ruling of the final court of the land in the 2G case, but had pretty much cleaned up the implications of the ruling for all other allocations of resources, doing away with the hard-and-fast rule of mandatory grant of resources to the highest bidder that the two-judge bench had earlier laid down.

Cut to 2017. The trial court judge, who through the trial, had pretty much denied every single interim application by every powerful applicant (whether it was from prominent industrialists seeking permission to travel, or from powerful political scions seeking bail) ruled that no case of criminality had been made out. Many commentators had been deeply invested in the idea that if the Supreme Court had already pronounced a bunch of persons guilty of impropriety, the criminal trial was just a formality to reach a foregone conclusion that the dramatis personae were guilty. They are still reeling in shock. For now, the best way to summarize the situation is that all improprieties need not be criminal in nature although all crimes necessarily constitute impropriety.

The last word in the 2G case is not out. Appeals will follow. The zeal with which the earlier government had been attacked politically seems to be dead now. The zeal with which another bench of the apex court would eventually consider the last appeal that may eventually get filed many years down the line, will determine the real final outcome. However, for this year, leaving merits of the specific case aside, this is a landmark development. The ruling cancelling telecom licenses were seen as bringing in uncertainty in the conduct of business. The ruling in the criminal trial underlines that the uncertainty can be uncertain.

Meanwhile, the silver lining is that regulators in the business of direct enforcement (without having to bother with proving themselves to courts of law in the first instance) would do well to learn that merely because they had taken strong positions on an interim basis, they do not have to conclude that violations took place. If the most high-profile case of the land can lead to acquittal, regulators must learn to look at every quasi-judicial trial presided over by them, with an open mind and without the fear of being seen as having sold their souls if they acknowledge that they were initially wrong.

Second, the law on insolvency affected business environment most materially this year. The very functioning of the newly-legislated Insolvency and Bankruptcy Code has taken off, with a bunch of cases reaching the apex court rapidly, and the law getting laid down. That even a newspaper vendor can initiate the insolvency process and bring a defaulter to his knees is good for business contracts. However, some extreme measures, however well-intentioned could kill the very efficacy of this law. One of them is the central bank taking charge of recovery decisions by banks — a position brought about through a Presidential Ordinance. The other is an evermore extraordinary Presidential Ordinance by which a blanket ban on anyone remotely connected to a defaulter gets disqualified from resolving any and every insolvent in the country.

Earlier, this column has analysed the unreasonable sweep of both these developments, here and here and therefore will not repeat itself. Course correction and tempering is expected, particularly with the latter. For now, all that stout defenders have to say is: “Don’t expect the course not to be ever corrected — for now we need these imperfections.” Quite apart from this being a sorry position to take, if correction remains elusive, the new insolvency law could be stultified. Simply put, no affiliate of any insolvent anywhere in the world can bid to resolve an insolvent, if this position is not corrected. And one is not being alarmist at all —indeed, this was the intention behind this latest Presidential Ordinance — since business failure and insolvency of every nature has been automatically stigmatised.

Finally, one would be remiss without reminding that the use of the “Money Bill” provisions in the Constitution of India — the only check and balance being the Speaker of the Lok Sabha, was taken to an extreme this year. Multiple tribunals constituted through Acts of Parliament passed by both Houses of Parliament have been abolished through a chapter in the Finance Act, 2017. In fact, the Foreign Exchange Management Act, 1999, which decriminalised violation of exchange controls by both Houses of Parliament, was re-criminalised through another recent Finance Act. That was not noticed loudly enough, and criminalising any conduct hardly evokes outrage in our society. The abolition and mergers of tribunals through this back door, certified by the Speaker to be worthy of a money bill legislation, will eventually be considered by the Supreme Court.

In a nutshell, the money bill envelope has been pushed to the farthest extreme. One could well be mistaken – a newer extreme may be achieved next year. Work on the Finance Bill, 2018 ought to have started in the cold corridors of North Block. Watch this space.

This was published as the Without Contempt column in the Business Standard editions dated December 28, 2017

The abolition of grant of bail without hearing govt’s position, and requirement to satisfy court that accused is not guilty, has become so rampant that it has now found place even in basic company law

The recent judgment of the Supreme Court striking down as unconstitutional, the provisions on bail contained in the Prevention of Money Laundering Act, 2002, (PMLA) is a long-overdue wake-up call. The law mandated two conditions for grant of bail — first, the public prosecutor must be given a chance to oppose the request for grant of bail; and second, the court must be satisfied that the accused is not guilty and is unlikely to commit another offence when on bail.

Now, this unconstitutional provision has in the past been upheld as constitutional in dreaded “anti-terror” laws such as Terrorist and Disruptive Activities (Prevention) Act, 1987, (Tada). This was obviously canvassed with the Supreme Court in arguments in support of the provision. However, the court differentiated the context of the earlier judgment (terror law) as compared with the PMLA (which has now covered within its sweep multiple laws across the board). In fact, it is provisions such as these that made society dread Tada. Once suspected of terror activity and arrested, the onus literally would shift to the accused to satisfy the court system to stay out of jail — remember consideration of bail is before the trial gets underway.

Interestingly, across governments (headed by political parties of supposedly varying colour), legislation with the bail provisions now held to be unconstitutional have been introduced. The abolition of grant of bail without hearing the government’s position, and the requirement to satisfy the court that the accused is not guilty has become so rampant that it has now found place even in basic company law. When fraud is alleged, the onus of satisfying the court considering the bail application that the accused is not guilty, and is unlikely to commit another offence, shifts to the accused under the Companies Act, 2013. Besides, the public prosecutor necessarily has to be heard — which simply means that even if she is unavailable and seeks a few adjournments, the person arrested has to stay inside jail even before trial. Moreover, the court must be satisfied that the person accused is unlikely to commit any offence when out on bail.

Time was when bail was the rule and jail was the exception. Today, across legislation, jail is the rule, and bail, the exception. Meanwhile, society fed by media, builds firm views on innocence or guilt. Not too many are unsure about Salman Khan not having been behind the wheel or Indrani Mukherjee not being guilty of killing her child — and indeed, it took a film and a book for society to question facts in the Arushi Talwar case. In fact, a large segment of society resents the Talwars being exonerated on the grounds that their guilt is not proven. Now picture having to satisfy junior judiciary and magistracy that the judges should be satisfied that accused are not guilty. A perverse outcome of such provisions of law is that the judge would worry if the grant of bail would mean that the judge is satisfied that the accused are not guilty and that would be used a clean chit when the trial is actually conducted.

In the PMLA case, the Supreme Court was told that its earlier decisions had upheld actions under these provisions, but the apex court rightly pointed out that in those decisions, the question before the court did not involve a challenge to the constitutional validity of the provisions.

The PMLA started as a check on laundering of proceeds of crime earned out of a narrow set of specific serious offences. The list of these offences, set out in a schedule to the PMLA (titled “scheduled offences”), kept growing through amendments. Heinous crimes like human trafficking and drug running, the original big ones on the list of scheduled offences, suddenly found violations such as failure to make an open offer under takeover regulations, keeping them company.

This kind of legislative thinking is what has led to bail provisions usually seen in laws prohibiting drug trafficking to find their way into law governing the running of companies. In other words, the risk of being accused of fraud when running a company is as high as the risk of being accused of drug trafficking when it comes to personal liberty and the ability to be granted bail. In the PMLA decision, the Supreme Court has built multiple scenarios of the timing of initiation and conduct of trial under the primary law and the trial under the PMLA to show how mindless and arbitrary the formulation has been, and has held the conditions for grant of bail to be unconstitutional.

When differentiating from the earlier ruling upholding these provisions as constitutionally valid in Tada, the Supreme Court has also extracted portions of that earlier judgment, which show that the Supreme Court had then taken note of the existence of such provisions in other laws affecting revenue. However, the constitutional validity of these provisions in those revenue legislation had not been challenged — they were only noticed by the court then. Now that these provisions have been held to be unconstitutional in the context of PMLA, it is critical for such provisions to be reviewed in the context of every legislation in which they reside. A good rule of law system would mean that this is done without asking the courts to consider each case and when they get presented. But that is truly wishful thinking in the political economy. However, some low-hanging fruit like company law could be a good starting point.

A substantial part of this piece was published as the Without Contempt column in the Business Standard editions dated December 14, 2017

The IBC ordinance is another example of attempting to write a law to solve a problem that is not properly defined at the threshold

The debate over the presidential ordinance amending the Insolvency and Bankruptcy Code, 2016, (IBC) to insert disqualifications of potential participants in the resolution process of an insolvent has become bipolar and divisive. Television channels are going breathless airing alternative views on alternate days. Columns (including in this paper) have attributed motives and sought to call out “canards” — a classic “Hindu–ho-ke-Musalmaan” type of zeal seen only in “holy wars” claiming righteousness.

The very nature of this fight makes it evident that the ordinance is good politics. However, in the process, the sweep of the real problem posed by the ordinance, runs the risk of remaining unaddressed, thereby risking the very effectiveness of the IBC.

The disqualifications introduced should first be noticed. The ordinance lists various categories of persons who would stand disqualified from participating in any resolution plan for any insolvent under the IBC. Any promoter of such disqualified person, and indeed any “connected person” with such disqualified person also stands disqualified. The term “connected person” includes all “related parties” and “associates” of the disqualified person. In other words, once any person is disqualified, the scope and sweep of the disqualification is wide and expansive.

Now, three categories of disqualifications in the list, clearly are amenable to the charge of not having been thought through, and will truly have mindless and unintended consequences.

First: the disqualification of any borrower that has been classified as a “non-performing asset” and has stayed in that status for over a year. At first blush, this would appear logical — obviously an entity that is unable pay its own debts cannot be involved in resolving the problems for any other insolvent. However, every “connected person” i.e. every “related party” of such entity and every associate too would automatically stand disqualified.

The term “related party” under the IBC is wide — for example, any company with common shareholding of just 2 per cent would be a related party. The term “associate” would be even more problematic — but the minute detail is not necessary to make this point in this column. Therefore, if a business goes bust for any reason whatsoever, every promoter of that business, and every related party and associate can never participate in any resolution plan for any other insolvent under the IBC. It is not even the case that only the participation of such related persons in the resolution of that disqualified person would be barred. Every resolution of every other insolvent under the IBC would also be barred. This is extreme, an unreasonable restriction, and can substantially wipe out the supply of authors of resolution plans.

Second: the disqualification of any guarantor of any debt owed by any insolvent under the IBC. This is an inexplicable disqualification. A guarantor of a company’s debt is someone who believed in that debtor and agreed to guarantee that debtor’s promise. When a resolution plan is sought to be made, the guarantor would have skin in the game because it is his neck on the line. While keeping out such a person from the resolution of the debtor is itself questionable, keeping out such a person and every person connected with him from every other resolution plan for every other insolvent under the IBC is not even intelligible.

Third: the disqualification of any person (and indeed, of every connected person, related party and associate of such person) to whom the capital market regulator may have issued directions not to deal in securities or access the securities market. No time frame of the period of prohibition on dealing in securities is set out. The capital market regulator is known to have been trigger-happy in the past, issuing such directions even on an “ex parte” basis (without a hearing). There is no settled science or rationale for the choice of the length of the directions in the law. Courts disturb or uphold such directions on the basis of the human judgement of nature of the facts in the cases before them. This disqualification would remove from the resolution market for all insolvents, a wide range of persons for no plausible, objective or intelligible rationale.

Worse, the same principles of exclusion from the market, would apply to any affiliate outside India. This would wipe out from the resolution market almost every single multinational company that has an interest in India. If any person anywhere in the world has ever become insolvent, or has become a non-performing asset or has been issued any direction not to deal in securities. all affiliates of that person all over the world would be ineligible to participate in a resolution plan in India under the IBC.

One can go on to other disqualifications too — for example: the disqualification upon conviction with an imprisonment term for a period of two years, without regard to what the conviction was for. So, if one family member has had an unfortunate tragic criminal conviction, every relative and every “connected person” would be banned from participating in any resolution plan for any insolvent. However, the three examples above would suffice to show how the public debate is wrongly focussed on “good vs. evil” terms — without nuance, and with deployment of blunt weapons rather than sharp instruments.

The IBC ordinance is another example of attempting to write a law to solve a problem that is not properly defined at the threshold. If the problem sought to be solved was to keep out those responsible for the cause of an insolvency from the resolution of that insolvent, the ordinance as promulgated is not the solution.

The very concept of identifying persons responsible for causing insolvency is very difficult to define in a one-size-fits-all manner. The ordinance has demonized the occurrence of insolvency instead of recognizing that business failure is a part of life. Every star investor and global business would have insolvents among their related parties.

This is why the IBC clearly envisages a role for professional resolution professionals and bankruptcy professionals. It is for these professionals to oversee a resolution plan for insolvent companies. A committee of financial creditors has to approve the resolution plan. It is open to the resolution professional and the financial creditors to weed out misfits from participation. If a resolution professional does not perform well, she is subject to regulatory intervention from the Insolvency and Bankruptcy Board of India, the regulator of these professionals. Instead of studying if this profession performs properly, the ordinance has put the very efficacy of IBC at risk, with an air of misplaced righteousness. It is time to cut out the noise and focus on the gravity of the problem.

A substantial part of this piece was published as the Without Contempt column in the Business Standard editions dated November 29, 2017

A Bench of the Supreme Court is reported to have criticized the Government of West Bengal and its advocate for filing a writ petition challenging the mandatory introduction of Aadhaar.

According to news reports, a judge is reported to have asked the lawyer how a state can challenge law made by Parliament. Taking the cue, it is learnt that West Bengal Chief Minister Mamata Banerjee’s lawyer agreed to get the individual who is the Chief Minister to be the petitioner instead of the state government.

“How can a State challenge a law made by the Parliament? You are challenging the vires of the Act.”

To protect the litigation in substance, finding fault with form, the Court is reported to have suggested,

“Let an individual come, let Mamata Banerjee come. But how can the State come? Tomorrow, what if the Centre challenges a law made by a State?”

This exchange may have been handled expeditiously had petitioner not displeased the Court by countering its observations. The move would have also suited the West Bengal Chief Minister, as it would give her direct political mileage. However, it begs the question if there is indeed any basis for a perception of illegality or impropriety in a state government challenging a law made by Parliament.

Interestingly, the answer, subject to some nuance, is clearly in the negative. There is no bar on a state government challenging law made by Parliament in the Supreme Court. On the contrary, under Article 131, the Supreme Court has exclusive original jurisdiction, to the exclusion of all other courts, over disputes amongst Central government and state governments, as indeed between state governments, where questions determinative of the existence or the extent of legal rights are involved.

In fact, the notion that challenges to law made by Parliament should be circumscribed, came up during the Emergency whenArticle 131Awas inserted to provide that only the Supreme Court could deal with challenges to such legislation. Right after the Emergency, this provision was repealed. That temporary limitation was one of the forum, and not of the eligibility of the party who could litigate.

Then there is the age-old issue of whether a writ petition under Article 32can be pursued by a non-individual, but that does not seem to have been the basis of the change of form of the challenge to Aadhaar by the West Bengal government. The discomfiture appears to have been the seeming impropriety of a state government taking on law made by Parliament. That concern, even from the standpoint of propriety, appears misplaced.

Besides, if public interest litigation filed by individuals can be considered to be “appropriate proceedings” under Article 32, it would stand to reason that a state government (which would be held to a greater standard of propriety in its conduct) too should be able to move court. Of course, a petition without merit can be thrown by the court as it would throw out any petition that is without merit. A state government would be taking serious political risk if the apex court were to stricture it for indulging in frivolous litigation.

In fact, the recent history of the United States is rich with examples of states challenging law made by the Centre. Early this year, US President Donald Trump issued an executive order banning entry of persons from specified Muslim nations into the United States. A total of fifteen state governments – California, Connecticut, Delaware, Illinois, Iowa, Maine, Maryland, Massachusetts, New Mexico, New York, Oregon, Rhode Island, Vermont, Virginia and Washington – chimed in with the state government of Hawaii, to challenge it.

Even the equivalent of a “Union Territory” – the District of Columbia (Washington DC, which is like our National Capital Region) – challenged the travel ban. By a sleight of hand, the US President’s team replaced the travel ban under challenge with a new ban, adding a couple of non-Muslim nations to the list of banned sources of travellers and the fight has been reset to the first round again. Hawaii is leading the fight again, and there is no reason why the other states would not join hands.

A state initiating litigation against the Centre in a court of law, over a constitutional issue, would embellish the robustness of the health of a federal democracy. Likewise, if for example, a State Legislature were to make law that is in the domain of Parliament, it would be a matter of robust federalism that the Central government challenges such law. The Supreme Court would be the right forum for resolving such disputes.

Indeed, there are various types of inappropriate use of judicial time for inter-governmental disputes and propriety would demand that those are not indulged in. For example, the income-tax department often files writ petitions challenging decisions of the Settlement Commission; the Enforcement Directorate is known to have challenged the Reserve Bank of India’s decision to compound offences under exchange controls; a former Union Finance Minister announced to the media that he had advised the capital market regulator and the insurance regulator to approach a court of law to litigate and resolve a turf war over unit-linked insurance schemes that were accused of also being mutual funds.

Last year, the state governments of Bihar and Jharkhand were rebuked by the Supreme Court for a dispute going back to 2004, over sharing of the guest house and state government office between the two states after the separation of Jharkhand from Bihar.

But a challenge to legislation made by Parliament by a state government, or for that matter, a challenge by the Central government to law made by a State Legislature hardly appears inappropriate.

Shift the oversight of tribunals from the government to the judiciary and reclaim the ground that constitutionally belongs to the latter

By Somasekhar Sundaresan

The Law Commission has published a report titled “Assessment of Statutory Frameworks of Tribunals in India”. While the report is a response to five specific issues referred to the Commission by the Supreme Court last year, it promises to be a catalyst to a new debate on the legitimacy of the tribunal framework that has come to dominate justice delivery in India.

First, while repeated constitutional challenges to the creation of tribunals have met with mixed results, with the institution of tribunals largely being upheld (with tweaks to composition and manner of appointment), one fundamental issue has eluded proper consideration and debate. Under our constitutional framework, separation of powers among the executive (elected government), legislature (Parliament and state legislatures) and the judiciary is a vital fundamental feature of checks and balances in running the polity. However, although a large segment of the justice delivery has shifted from courts to tribunals, the latter are run by the government (executive) and not the judiciary.

The manner of appointment of its members, performance appraisal, career path for tribunal members, remuneration, terms of service are all outside the oversight of the judiciary. This is the foremost problem with tribunalisation. Unless this issue is addressed, one would perpetually be faced with the main litigant before the tribunal being its administrative overseer, presenting an inherent and foundational conflict of interest. A high court judge, once appointed, can only be removed by Parliament through impeachment. That is a constitutional design to provide for judicial independence. That logic is turned on its head when members of the tribunal, including presiding officers who are invariably retired judges, are mere government employees without any serious procedure for their removal. The breakdown of the separation of powers is potentially the most unconstitutional feature of the functioning of tribunals.

Second, with so many areas of jurisdiction being taken away from the high courts and moved to tribunals, a seriously unmindful long-term damage is being inflicted on the judiciary. The judiciary has been zealous in guarding its independence on appointment of judges but has not been so in guarding what judges get to do after appointment. Legislation after legislation that confers a tribunal jurisdiction over a body of law contains provisions to oust jurisdiction of civil courts (for example, electricity tribunals or the Securities Appellate Tribunal). Appeals from such tribunals typically lie in the Supreme Court — on the rare occasion with another intermediate appeal in another appellate tribunal (for example, company law) — but clearly taking out the jurisdiction of high courts.

Therefore, what a high court judge gets to work on stands seriously denuded. Apart from civil disputes between parties, matters of serious commercial policy and regulatory implications get dealt with outside the precincts of high courts. The counterpoint would be that writ petitions challenging the constitutional validity of state or regulatory action can indeed be filed in high courts. However, the rare writ petition that gets filed in a high court, and the even rarer one that is actually considered by a high court in an area of law covered by a tribunal’s jurisdiction, would be the exception that proves the rule. The availability of the alternative efficacious remedy in the tribunal is the first ground that gets fought in such writ petitions, and that alone can take weeks, if not months, on end.

When a high court judge moves up to the Supreme Court and hears an appeal from decisions of these tribunals, she would have barely had a chance to consider these laws in her entire career as a high court judge. When she retires as a Supreme Court judge and potentially gets appointed as a presiding officer of one of these tribunals, she may have to start from scratch with a specialised area of law, negating the very objective of creating specialised tribunals.

In a nutshell, the grand constitutional scheme of conflict by design between the elected political legislature, the unelected bureaucrats in government and the judiciary stands demolished. The legislature is happy to let the executive pilot legislation, eroding the space for real and independent justice delivery by bringing a substantial part of the mindshare of the judiciary under the direct oversight and indirect control of the executive government, ousting the jurisdiction of courts.

Finally, such an act of pulling of the rug from under the feet of the judiciary is not caused only by creating tribunals. The very creation of regulatory agencies and giving them quasi-judicial powers, again excluding jurisdiction of courts, is where the problem gets seeded. For example, civil courts have no jurisdiction over areas in which the Securities and Exchange Board of India (Sebi) has jurisdiction. The ouster is at two levels in the Sebi Act, 1992: Jurisdiction of the Sebi and that of the Securities Appellate Tribunal oust the jurisdiction of civil courts. The regulator has to convince no judge in taking action (indeed, a perverse incentive to even take ex parte actions with debilitating consequences) and no judge outside a tribunal can hear an appeal from such an action. After the tribunal, the Supreme Court is directly the forum for the last appeal.

Now, the trend is so pernicious that state legislatures have started passing legislation providing for appeals to the Supreme Court as a matter of right — in other words, states seek to task the apex court with judicial work, bypassing the high courts in having jurisdiction over state-level tribunals.

All of this points to a fundamental design breakdown. At this juncture, the Law Commission’s report (which is in the nature of recommendations) does provide fodder for contemplation. The recommendations largely and rightly focus on the important aspect of composition of the tribunals and who can man them. The Commission also speaks about a “single nodal agency under the aegis of the Ministry of Law and Justice” to oversee all tribunals.

However, the malaise is deeper and needs broader surgical intervention. It can only be corrected by shifting the oversight of tribunals from the executive government to the judiciary and reclaiming the ground that constitutionally belongs to the judiciary as an arm of the state.

This post was published as my column titled Without Contempt in the Business Standard’s edition dated November 2, 2017